Raven Government Services

National Labor Relations Board - Board Decisions

Nov 6, 2001

336 N.L.R.B. 991 (N.L.R.B. 2001)

RAVEN GOVERNMENT SERVICES 991
Raven Government Services, Inc. and International
Union of Operating Engineers, Local 826, AFL–
CIO and International Union of Operating En-
gineers, Local 351, AFL–CIO. Cases 16–CA–
18516, 16–CA–18761, 16–CA–18841
November 6, 2001
ORDER GRANTING MOTION
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND WALSH
On June 30, 2000, the National Labor Relations Board
issued its decision in the captioned case.1 The Board
found that the Respondent violated Section 8(a)(5) and
(1) of the Act by, inter alia, making various unilateral
changes in working conditions. The Board ordered the
Respondent to make the unit employees whole for any
losses resulting from the unilateral changes “in accord
with Ogle Protection Service, 183 NLRB 682 (1970),
rather than F. W. Woolworth Co., 90 NLRB 289 (1950),
cited by the judge.”2
On May 4, 2001, the Acting General Counsel filed a
motion for clarification or modification of Board Deci-
sion and Order, specifically with respect to one of the
Respondent’s unlawful unilateral changes, i.e., the elimi-
nation of job classifications. The Acting General Coun-
sel asks the Board to order that any unit employees laid
off or discharged as a result of unlawful unilateral
changes be made whole for their losses in accord with
the quarterly F. W. Woolworth backpay formula. He
further asks the Board to order that the Respondent offer
any affected employees full and immediate reinstatement
to their former jobs.
On May 18, 2001, the Respondent filed a motion in the
alternative for clarification or modification of Board De-
cision and Order, with a brief in opposition to the Acting
General Counsel’s motion and in support of the Respon-
dent’s alternative motion. The Respondent contends that
the Acting General Counsel’s motion was incorrectly
filed under Section 102.49 of the Board’s Rules and
Regulations. The Respondent argues that the Acting
General Counsel’s motion is really a motion for recon-
sideration and, as such, must therefore comply with Sec-
tion 102.48(d) of the Board’s Rules and Regulations.
The Respondent further asserts that the motion should be
denied as untimely filed under Section 102.48(d). Fi-
nally, the Respondent argues, in the alternative, that if
the Board grants the Acting General Counsel’s motion, it
should also grant the Respondent’s motion to modify the
Board’s Decision and Order by reconsidering the issue of
whether a management-rights clause gave the Respon-
dent unilateral authority to eliminate certain job classifi-
cations and to lay off affected employees.

1 331 NLRB 651.
2 Id. at 651 fn.1.
Analysis
For the reasons that follow, we grant the Acting Gen-
eral Counsel’s motion and deny the Respondent’s mo-
tion.
1. With respect to the procedural issue, the Acting
General Counsel’s filing of the instant motion under Sec-
tion 102.49 of the Board’s Rules and Regulations was
appropriate. Dorsey Trailers, Inc., 322 NLRB 181
(1996), dealt with the specific issue presented here. In
Dorsey, the Board stated that

[B]oth Section 102.49 and Section 10(d) [of the Act]
provide that the Board may modify its order at any time
before the record in the case is filed in court; there is no
explicit requirement that the Board act on the motion of
a party. Indeed, the Board has long held that, under the
plain language of Section 10(d), it has the authority to
modify its orders sua sponte. Had the General Counsel
not filed a motion at all, then, the Board could have
modified its order sua sponte at any time before the re-
cord was filed in court. That being the case, it would
be anomalous to find the Board without authority to
modify its Order now, before the record has been filed
in court, because a motion that was not even required
for such a modification was not filed within the time
period for filing other kinds of motions. [Footnote
omitted.]

As a general matter, of course, the Board has full au-
thority over the remedial aspects of its decisions, even in
the absence of exceptions. See, e.g., Indian Hills Care
Center, 321 NLRB 144 fn. 3 (1996); Dorsey Trailers,
supra, 322 at 181 fn. 4. The remedial modifications we
make today properly correct inadvertent errors by the
Board and the judge.
Neither case cited by the Respondent in opposition to
the Acting General Counsel’s motion supports its argu-
ment. Community Medical Services, 239 NLRB 1244
(1979), involved an untimely motion for reconsideration
of a substantive Board ruling. NLRB v. Selvin, 527 F.2d
1273, 1276 (9th Cir. 1975), involved an untimely motion
to reopen the record. In both cases, the time require-
ments for the filing of the disputed motions were con-
trolled by Section 102.48(d), and each decision drew a
clear distinction between motions filed under that section
and motions, or actions taken sua sponte by the Board,
336 NLRB No. 99
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 992
under Section 102.49.3 Therefore, we find that the Act-
ing General Counsel’s motion has properly raised a re-
medial issue.
2. We further find merit in the argument that the reme-
dial modification in our original Decision and Order, 331
NLRB 651 fn. 4, substituting the backpay formula of
Ogle Protection Service, Inc., 183 NLRB 682 (1970),
enfd. 444 F.2d 502 (6th Cir. 1971), for the quarterly
backpay formula of F. W. Woolworth Co., 90 NLRB 289
(1950), failed to account for undisputed record evidence
that the Respondent’s unlawful unilateral elimination of
certain job classifications had resulted in the layoff or
discharge of some unit employees. Ogle Protection,
makes clear that “cessation of employment status” result-
ing from the Respondent’s unlawful elimination of job
classifications is appropriately remedied under the quar-
terly Woolworth backpay formula. The Ogle Protection
formula applies only to remedy “a violation of the Act
which does not involve cessation of employment status
or interim earnings that would in the course of time re-
duce backpay.” 183 NLRB at 683.
3. We also find merit in the Acting General Counsel’s
argument that our original Order should be modified to
include the traditional remedial requirement, independent
of the backpay remedy, that the Respondent make whole,
employees discharged or laid off as a result of its unlaw-
ful unilateral action by offering them immediate rein-
statement to their former jobs. We shall modify the Or-
der accordingly.4
4. Because it represents an untimely attempt to reliti-
gate an issue previously decided by the Board, we deny
the Respondent’s alternative motion to reconsider its
argument that a management rights clause privileged its
unilateral action.
ORDER
The Acting General Counsel’s motion for clarification
or modification is granted. Accordingly, it is hereby
clarified that the Respondent shall make whole, unit em-
ployees laid off or discharged as a result of the Respon-
dent’s unlawful unilateral changes in accordance with F.
W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987). The Respondent shall make unit employ-
ees whole for other losses suffered as a result of its
unlawful unilateral changes in accordance with Ogle
Protection Service, 183 NLRB 682 (1970), plus interest
as computed in New Horizons for the Retarded, supra.

3 We note that Sec. 102.49 of the Board’s Rules says that the Board
may modify its order “within the limitations of the provisions of . . .
Section 102.48.” However, there is no provision of Sec. 102.48 that
would foreclose consideration of the Acting General Counsel’s motion.
That is, Sec. 102.48 contains limitations on motions for reconsidera-
tion, rehearing and reopening, but it contains no limitations on modifi-
cation. Thus, we find no impediment to granting the Acting General
Counsel’s motion.
4 We shall also modify the Order in accord with our recent decision
in Ferguson Electric Co., 335 NLRB 142 (2001).
It is further ordered that the Board’s Order in the un-
derlying decision (331 NLRB 651) is modified, and the
Respondent, Raven Services Corporation d/b/a Raven
Governmental Services, Inc., Fort Worth, Texas, its offi-
cers, agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Insert the following as paragraph 2(d), relettering
the subsequent paragraphs.
“(d) Within 14 days from the date of this Order, offer
any unit employees who were laid off or discharged as
the result of unlawful unilateral changes full reinstate-
ment to their former jobs or, if those jobs cannot be rein-
stituted for reasons unrelated to their unlawful elimina-
tion, to substantially equivalent positions, without preju-
dice to their seniority or any other rights or privileges
previously enjoyed.”
2. Substitute the following for relettered paragraph
2(f).
“(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.”
3. Substitute the attached notice to employees for that
which issued on June 30, 2000.

APPENDIX

NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

RAVEN GOVERNMENT SERVICES 993
WE WILL NOT coercively interrogate you about your
union support or activities.
WE WILL NOT withdraw recognition from and refuse
to recognize and bargain with International Union of
Operating Engineers, Local 351, AFL–CIO, as the exclu-
sive collective-bargaining agent of our employees in the
following appropriate unit:

INCLUDED: All service and maintenance employees
working for the Employer at the Western Currency
Plant in Fort Worth, Texas.
EXCLUDED: All other employees, including office
clerical employees, quality control employees and ad-
ministrative assistants, supervisors, including weekend
supervisors, and guards as defined in the Act.

WE WILL NOT fail and refuse to furnish the Union
with information necessary and relevant for bargaining
on behalf of the unit employees.
WE WILL NOT bypass the Union as the exclusive col-
lective-bargaining agent of the unit employees and will
not deal directly with the employees concerning rates of
pay, wages, hours, and other terms and conditions of
employment and will not institute unilateral changes in
these terms and conditions of employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL recognize and, on request, bargain with the
Union and if an understanding is reached, embody it in a
signed agreement.
WE WILL furnish to the Union in a timely manner the
information requested by the Union for bargaining.
WE WILL on request rescind any of the unilateral
changes found unlawful by the Board.
WE WILL make the aforesaid bargaining unit employ-
ees whole for any loss of wages or benefits incurred as a
result of our action found unlawful, with interest.
WE WILL, within 14 days from the date of the Board’s
Order, offer any unit employees who were laid off or
discharged as the result of unlawful unilateral changes
full reinstatement to their former jobs or, if those jobs
cannot be reinstituted for reasons unrelated to their
unlawful elimination, to substantially equivalent posi-
tions, without prejudice to their seniority or any other
rights or privileges previously enjoyed.

RAVEN GOVERNMENT SERVICES, INC.